*1 311 the circuit court over which are in the they presiding, circuits which resident they are judges.” It is that above apparent provisions quoted, the General of this intended Assembly State that all general laws and rules of statutory provisions, same including and of this procedure Circuit practice apply Courts State, shall be to the applicable Civil Court of Horry.
The Order from is reversed is re- and this case appealed manded for an Order venue from entry changing the Civil Court of to the of Common Pleas for Horry Court Marion South County, Carolina.
Reversed. C. and J., j.,J
Stukes, Taylor, Legge, Oxner concur. WALLACE, Carolina, Key Ancillary
W. Lewis Receiver for South Casualty Pittsburgh, Pennsylvania, stone Company Mutual Dis solved, TIMMONS, Appellant, individually v. Eva McDonald as Executrix the Estate of William R.
Respondent
(101 844) (2d) S. E. *2 Messrs. Thomas A. Cox, and Herman E. Wofford Greenville, Appellant, *3 Mann, Leatherwood, Walker, Todd of Green-
Messrs. & ville, Respondent, *4 Leatherwood, Walker, Mann,
Messrs. Todd & of Green- ville, Respondent, 6, 1958.
February
E. H. Associate Henderson, Acting Justice. indefinite,
The are exceptions quite general 4, 6, do not with rule section of the Court. comply However, them, we have decided to consider since meritorious they error. attempt present assignments As the in this case is whether trial question judge correct in was the demurrer and sustaining dismissing it is that we see what are the complaint, necessary just and what is embraced in the complaint, allegations demurrer.
The complaint alleges that is the plaintiff ancillary in this receiver state for the Mutual Keystone Com- Casualty dissolved; now on March pany, Pennsylvania corporation 13, deceased, R. William now and the Key-
316 stone Mutual into Casualty Company entered an agency agreement, of the copy agreement is attached and made a of the part to the complaint; pursuant William R. agreement Timmons collected sums of the for large money Keystone, and that under company, the terms of the he be- agreement came the trustee of such monies for the benefit of the com- 22, 1948, Mr. Timmons died testate on pany; leaving June an $500,000, wife, valued at estate more than his with the Timmons, defendant Eva McDonald as executrix and sole 25, 1948, on beneficiary; Mrs. was Timmons July appointed estate; executrix the at the time of the of Mr. Tim- death mons he had in his $25,504.72 possession to belonging the Keystone that this sum company; was with a impressed trust the under the agency decedent had on de- agreement; posit $61,638.34, in three in banks the sum accounts de- nominated “W. R. with which Agency”, accounts the sum held himby as trustee was commingled; and the three banks have turned over the to the defendant deposits as executrix. 13, 1951,
That on filed a September claim plaintiff the decedent’s against $25,504.72; estate the amount of the claim was not filed within the time by section required code, 19-474 of the had, and a on it was never and hearing it refused; was never honored or has the estate never been settled; that the to plaintiff is entitled an accounting respect- funds, the trust have them and to held for ing as he disposal direct; allow shall and that to to defendant keep an enrichment. unjust funds would be One is the attached paragraph agreement follows: “The money that all securities received or agent agrees him held him in by collected shall be trust the benefit of the and remitted to the in strict ac- Company, Company with the rules regulations cordance and Company of this the terms agreement.” that, is The for an the defendant be prayer accounting; trust over the funds to the pay plaintiff; required defendant, in- that the have judgment against plaintiff the trust executrix, the amount of funds. and as dividually The suit was on commenced January The demurrer of the defendant was upon following That it grounds: the face of the appears upon complaint the claim was barred sections 19-473 and 19-474 of the code, as it was not filed with the executrix within the *6 time; that required it was barred Section 10-143 by code, as the action 30, was not until brought January a of more than period seven after years the death of William R. Timmons; that it was not asserted the against defendant in her as executrix within capacity the time limit of section code, 19-474 of the that it not was asserted the de- against fendant 30, 1956, until individually a January of more period than seven after Timmons, the death of years Mr. and is barred 10-143; section by action, and that another in the Probate Court for Greenville is County, between pending same the the parties same cause.
In his order the special Kerr, Honorable Davis judge, J. sustained the demurrer on three : That grounds the com- (1) not plaint does that Mrs. as allege individual, án received of any the assets fund; trust composing that (2) the claim is barred sections by 19-473 and 19-474 of the code, which he statutes; held to be non-claim that it (3) is barred laches. by
The first ground stated above was not included in demurrer, respondent’s is not consequently an issue in the case.
As to the second ground, conceded at the appellant that the claim hearing against in her respondent capacity barred, executrix was as as it was not filed within the time section by 19-474. The provided remains as question whether it defendant, was barred as against individually, as distributee.
In our sections 19-473 and opinion 19-474 do not to the case. have apply present reference to the They creditors, claims of and relate to debts of the testator from his estate. The payable complaint alleges trust fund. constituted a monies collected the decedent is to be as true. the demurrer that taken For the purposes to these funds did or not a trust relationship Whether its is tried when the case upon can be determined fact exist merits. is a of the demurrer the appellant
For the purposese the life trust and not a creditor. During cestui que not liable Mr. the trust fund was time of Timmons of the fund did The character or ownership for his debts. his his It did not become a part death. not change upon v. National estate, Gary Peoples’ for his debts. liable Bank, E. 568. 26 S. C. S. error on the we conclude that there was part
And so this the trial judge relying upon ground. which the decision was based was
The third upon ground laches. It held that the that the is barred was appellant an of more than seven delay showed complaint unexplained *7 in the suit. years bringing the of
The of laches was not one of subject grounds Nevertheless, the demurrer filed the by respondent. in cases it can be considered the court of proper motion, It is its own even not not necessary though pleaded. v. 106 set laches in formal Cook Knight, to a manner. up Weathersbee, 310, 312; v. Tucker 98 S. C. S. C. 91 S. E. Sanders, 73, 402, 638; v. 62 S. C. 39 82 S. E. Wagner E.S. 950. in there was delay commencing
Without doubt a long However, action. the determination of the the ques in the the tion of laches of circum- proceeds light case, into consideration other stances of each taking among or the has worked delay injury, whether prejudice, things S., the defendant. 30 C. Equity, p. § disadvantage J. the con- ordinarily time is one and not only 534. of Lapse to be considered. Fallaw v. one of the elements Os- trolling wald, 387, 9 S. E. (2d) 194 S. C. defense,
Laches is a usually matter of raised the answer. Even if it from the appears that complaint there suit, has been in long the delay instituting the court not should decide the on a demurrer if question there are in the to show allegations pleading tending explana- S., tion or 231, 270, excuse for the C. delay. Equity, §§ J. 681, 711. The trial was of that pp. judge there were opinion no facts in the alleged the complaint explaining lapse time, or on the of the any diligence showing part appellant. are, believe, There we some which should be allegations considered in whether there was excuse or deciding explana- case, tion in this such as the non-residence the Keystone its the company, insolvency the receivership, filing claim the not against estate that was the (although proper the remedy), refused, fact claim that the was never and that the executrix has not been discharged. added, also,
It be that it may does not on appear the face of the that the complaint knew of death appellant of Mr. Timmons as far back as June, 1948. The does complaint not when the allege dissolution, went into Keystone company when receiver was ancillary appointed.
In view of the of the it should allegations not complaint, be on decided the demurrer whether the explanations are valid, or if there was fact laches on the part appel- That can case, lant. be much better trial of done at the after examination cross-examination of the witnesses. are of We case did not warrant opinion trial the doctrine of of his own judge laches motion invoking or in the demurrer. sustaining
For the reasons stated we think that the order appealed ordered, from should be It is so reversed. and the respondent after shall have is twenty days remittitur filed which to answer the complaint. Taylor C. J., JJ.,
Stukes, Legge, and and concur. (concurring). Oxner, Justice strict
I concur but desire to state that waive agreeing in- I was with the rule governing exceptions, compliance is a receiver. See dissent- fluenced the fact appellant Miami, Inc., v. Greybow, me in Shayne ing opinion C., 101 E. Inc., v. S. S. Townes), (2d) re Grand (In WALKER, Jr., Petitioners, al., Henry C. v. G. E. MOORE CO. et of, constituting Reid, Individually and as members James J. Commission, Respondents. Industrial South Carolina (2d) 106) (102 S. E.